*1 testimony her as to the syndrome support credibility battered wife concerning desperate struggle.
I the sum of the rea- agree testimony was admissible sons that or other un- prosecution charged by strangulation murder means, strangulation known that some evidence of was introduced by defendant, and that prosecution through by admission purported murder in a argued State that defendant was strenuously guilty context which would defendant’s require jury completely reject of the testimony struggle which resulted the death husband. I that the evidence of the wife would be agree syndrome battered if the that death jury admissible accepted theory prosecution was strangulation caused or other unknown means while the victim was asleep and that since the to choose jury required between theory as to the cause of death and the defendant’s prosecution theory death, of the cause of concerning syndrome the evidence would if be relevant persuaded victim died strangulation or other unknown means. LEMINGS, Minor,
MICHELLE A through Her Mother and Next Friend, Lemings, al., Sandra Plaintiffs-Appellees, et v. COLLINSVILLE al., Defendants-(Metro SCHOOL DISTRICT NUMBER TEN et East Dis Inc., posal, Delashmit, Defendant). Defendant-Appellant; Donald
Fifth District No. 82 — 549 30, 1983. Opinion September filed *2 JONES, J., specially concurring. Marshall, Louis, Missouri,
John H. appellant. of St. for Strellis, Waterloo, Jack A. for appellees.
PRESIDING JUSTICE opinion HARRISON delivered the of the court:
Defendant Metro East Inc. filed an Disposal, interlocutory appeal from an order overruling its motion to dismiss second plaintiffs’ amended complaint. The question, which was raised by pleadings and certified trial court for appeal pursuant Supreme Court Rule is whether defendant’s motion to dismiss should have been reasons, sustained as a matter of following For the we affirm the law. trial court’s decision.
Plaintiffs’ second complaint alleged amended that on December 15, 1980, at Michelle at- approximately p.m., 10-year-old Lemings tempted to cross Harvard Street in Madison Illinois. She left County, the State Park School grounds girl meeting. on her to a scout way The complaint that, further alleged as she moved a trash past dump- ster owned and on positioned grounds the school Metro East Dis- posal, Inc., she was seriously injured struck and automobile driven by defendant Donald III Delashmit. count of the complaint against Metro Inc., East Disposal, following: stated the
“7. defendant, Inc., Metro East Disposal, through agents, servants and was then and there employees guilty the following negligent omission, act or had Having wit: knowledge or through the reasonable exercise of care would at or knowledge crossing school children would be School, near a dumpster placed at or near State Park failed to not act place dumpster at a location where it would barrier drivers driv- and hinderance of the view automobile Street, namely ing Harvard and/or view of pedestrians, Street at near State Park plaintiff, crossing Harvard School.
8. As a and result act or negligent direct omission defendant, plaintiff, Lemings Michelle and her injured body permanently severely about has been incapacitated and will remain so for duration her natural life which has during all of time she and will incur great further, pain suffering; upon reaching majority, plaintiff, for Lemings, Michelle will become substantial liable medical her expenses expenses being.” care of daily Count VII complaint the same allega- contained substantially tions.
The issue on is whether amended appeal plaintiffs’ second com- plaint states a cause action Metro East Inc. Disposal, obstruction, Defendant contends the trash alleged dumpster, created than nothing more a condition which the accident made possi- ble. maintains that the obstruction cannot be considered a proxi- mate cause of the child’s injuries because her own negligence and that of the driver the automobile. Defend- *3 ant therefore that this requests ruling court reverse the trial court’s and enter an order directing the trial court to Metro East dismiss with prejudice.
In response to argument the that defendant’s conduct was not the proximate accident, the cause of plaintiffs cite several cases in which proximate cause Although is discussed. the cases are factually dissimi lar the present the discussions contained therein are relevant to our determination. For example, Davis v. Marathon Oil Co. in volved suit aby gasoline driver the delivery-truck owner station, service the station attendant and oil the who company owned and the gasoline (Davis v. Marathon Oil installed Co. pumps. (1976), 64 Ill. 2d The driver sued for he injuries off, received when a gasoline failed to shut pump spilling onto pavement. Experts testified that either gasoline ignited was from a sparks space heater inside the station or by sparks passing be tween plaintiff nozzle of In that Marathon pump. deciding could be held for its if negligent pumps liable installation of foreseeable, other intervening quoted events were court Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 380-81: “ proximate ‘What constitutes cause has defined in nu- decisions, opin there is no difference practically
merous must the natural and to what the rule is. The be injury ion as of such act or omission and be negligent result of probable to have ordinarily prudent person ought a character an [sic] al negligence, to occur as a result of likely foreseen as negli charged the person it is not essential though resulted injury foreseen the which gence precise should have efficient cause is a intervening An from this act. [Citations.] the causal connection force which breaks independent new and and itself becomes wrong injury original between The in the injury. and immediate cause of direct [Citations.] forces will intervening concurrent or independent tervention if the of such forces connection intervention not break causal is the prox or foreseeable. What was itself probable [Citations.] of fact be ordinarily of an imate cause from a consideration of all evi aby determined ” Co. Davis v. Marathon Oil (1976), 64 Ill. dence. [Citation.]’ 380, 394-95. 2d v. Town Bentley Saunemin concept applied
The same was supreme in which Ill. 2d 413 N.E.2d ship (1980), 83 trimming for not negligent township court held that was a negligence intersection. It said the branches at an which collided with an automobile passenger cause of the death find jury’s special In spite at the intersection. another vehicle passenger’s the cause of the negligence the driver’s ing one prox there more than Bentley “may court held that death, the case and that well be [citations], may of an injury imate cause 10, 17.) 2d Township (1980), 83 Ill. (Bentley Saunemin here.” Neering, also for the proposition cited a proxi a defendant will constitute
“The act su intervening if some injuries of a plaintiff’s mate cause if the defendant could negligence, the defendant’s persedes act, act will not relieve intervening foresee the reasonably 10, 15. liability.” the defendant intervening discussed recently This (Bak Burlington suit. liability cause, premise in the context of a 148.) Bah Northern, Inc. App. *4 she took for relief pain-killers an overdose of died from deciding defendant’s property. in a fall on received injuries existed, causation still regarding of fact question a material that of defendant in favor granted summary judgment reversed “ '*** charged person it is not essential and stated negligence should have foreseen the which resulted precise injury new, from his inter independent act.’ The intervention of [Citation.] vening cause does not one of for a necessarily responsibility relieve negligent act ‘when the of an a na intervening such injury ” ture as could ***.’ Bak anticipated, have been reasonably Northern, Burlington (1981), App. Inc. 271. mind, reject
With these in we defendant’s con principles tention that its motion to dismiss should have sustained as a matter of After agree law. careful examination of the we pleadings, with the trial court that the plaintiffs have stated a cause action against defendant. The that Metro complaint alleges East had a to exercise reasonable care and caution for the of others. It safety al leges that this was violated placement dumpster such a manner that it hindered the view of both pedestrians driv ers on that, Harvard Street. It states as a direct and result negligent placement dumpster, plaintiffs incurred se vere and injuries. decided, As the court in Davis the ac permanent tual proximate cause of is a fact which must de termined after by jury consideration of all the (Davis evidence. Marathon Oil Co. We make no determina tion on the merits at this time. We hold com merely plaintiffs’ plaint is sufficient to state a cause of action. the order
Consequently, of the circuit court of Madison de- County nying defendant Metro Disposal, East Inc.’s motion to dismiss is affirmed. hereby
Affirmed.
KASSERMAN, J., concurs. JONES, concurring: JUSTICE specially In holding that plaintiffs’ second amended is sufficient complaint against defendant, state a cause of action Metro East Inc. Disposal, (Metro), majority reaches what I believe be the correct result I respectfully disagree with the for its basis decision. issue appeal presented Metro’s claim that its act placing dumpster was not the cause of plaintiff’s injury and that dumpster did more than create a condition nothing made plaintiff’s injury possible through independent negligent act party, third driver of the automobile that hit the plaintiff. that, law, Metro contends as a matter of held cannot be liable plaintiff’s injury. Countering, the plaintiffs complaint contend that *5 is as to whether Metro’s actions in sufficient to raise a factual issue the the a cause of and that case plaintiff’s injury case were the stage Metro thus cannot be concluded at as a pleading matter of law. the that arguments presented by have been framed
Despite cause,” it the in terms of the issue of seems parties "proximate obvi- real of is that contention Metro the second plaintiffs’ ous it any under complaint amended is insufficient to show was that, to guard against injury to measures to an the plaintiff take the under of might by set facts that disclosed evi- accordingly, any dence, liability plaintiff’s can be no Metro for in- imposed upon there that, case a the have decided in this as matter of majority Could jury. consequence the law, plaintiff the received was not foreseeable injury and, could not dumpster of accordingly, Metro’s placement Yes, have, could plaintiff’s injury? they of been the case law for the real in the at this is one of the point because issue of was at time of her injury, determination the court: the the plaintiff the in the alleged complaint, scope as shown facts her within by of of a owed Metro plaintiff? Metro, If the have been “foreseen” injury majority should writes, placing dumpster “proxi- the act of Metro was then the case for trial plaintiff’s injury, go mate of must back cause” on issue. should not “foreseeability” my opinion, majority cousin, or its this on the basis of cause” “proximate have decided case condition,” foreseeability” a or on the “creation of basis by Metro. plaintiff’s injury in a case particular a exists and the question
The thereof is a of law. terms question scope however, cause,” properly are used “foreseeable” and “proximate an was to of fact. “foresee with reference Whether questions to defendant jury test a determine whether a able” is the used by Brown Ill. 2d Mieher v. duty (see of a breach of guilty conduct 307); “proximate whether a defendant’s is to determine the test used a plaintiff’s injury jury cause” of a a conduct whether there was a causal connection between defendant’s Nevertheless, regularly Illinois courts use the injury. and a to cause” decide as matter of “proximate terms “foreseeable” and a duty plaintiff’s injury scope falls within law whether The use of on occasion plaintiff question. defendant owed the is misleading, because it way terms this unfortunate two law, fact—the real issue—one of not of to obscure the tending decide. a court terms refer When uses actually has asked law, fact questions vagueness, to decide a uncer- question are sure tainty, misunderstanding consequence. use such fact-oriented terms as “proximate cause” and to de- “foreseeability” termine issues related obscures fact that the court is dealing suggests issue law and question is a of fact for the when It is simply not. con- fusing to use the same that are commonly terms known relate to questions for trier fact in order to determine the question of law of of a duty. easy can be said with certainty whether a defendant is un
der a duty to a particular occasion is law for the alone, determination of the court and a multitude of Illinois *6 cases so hold without a contrary Q.S.E. Foods, voice. v. (E.g., Fancil Inc. (1975), 60 Ill. 2d 328 538; Mieher Brown.) neg ligence in cases which existence, Illinois courts have considered the as distinguished from the of duty, a there has no scope, difficulty in discounting the of prominence “foreseeability” and cause” “proximate concentrating policy that finding considerations underlie the of a duty.
“In negligence no than many foreseeability cases more is in- so grounded volved. And because actions many upon negligence conduct, involve familiar it patterns of is to easy forget that implicit in an allegation of is the assertion of a fail- ure to with the of comply standard care that the law requires— *** the assertion of a duty and its breach. [Citations.]
After event, hindsight makes every occurrence forsee able, whether the law a does imposes duty depend [sic] upon forseeability alone. The likelihood of injury, mag [sic] nitude of the burden of it and the guarding conse defendant, of quences placing burden must also (Lance be taken into account.” 36 (1967), Senior Ill. 224 N.E.2d See v. Washington also Barnes 56 Ill. 2d (1973), N.E.2d 535 and the statement Professor Leon Green used in Mieher v. Brown 539, 544, 309-10, a frequently quoted in passage Illinois cases.
But it is discharge never sufficient court’s role in a negli- gence case to determine whether a exists. Equally important court, found, once is is the determination of whether the incurred complained within the pro- tection duty. afforded
Restatement sec. 435(2) (1965), pointed Torts makes a owed and to reference viewing court is for the determination of the the fact it event retrospect. legal not to be cause of may
“The actor’s conduct be held looking to back from harm another where after event conduct, it negligent appears the harm to the actor’s about brought court that it should have highly extraordinary the harm.
* * [*] (2): Comment on Subsection it is
(c). appears retrospect Where court has come into extraordinary intervening that an highly supersed- a force to the court declare such operation, may *** extraordinary nature ing Analytically, highly cause. (with or which has the actor’s conduct the result from followed intervening that the haz- force) without the aid indicates about that brought bringing ard about or assisted which which respect with among result was not hazards *** Strictly, problem negligent. conduct was before on the determining imposed one of the risk the one harmed designed protect actor from *** However, courts in question. harm the hazard fre- *** problems causation. quently problems treat such *** as to judgment d. The court’s Viewing the event. after is made after extraordinary whether the harm a result highly happened. all that has the event the full knowledge at the time actor surroundings This those of which includes *7 which the course of events discloses nothing knew *** court. which it to state definite rules can impossible any by e. is negligent of the actor’s determined a result particular be as to the highly extraordinary prevent conduct or is so is is a matter cause of that result. This being legal conduct from event, after the the of the court formulated for judgment pro- the effect that was therefore, of knowledge of Torts sec. Restatement added.) duced.” (Emphasis c, d, e, 435(2), (1965). at 452-54 Comments express in terms function recognized courts have Some Illinois The of in a number of cases. protection of the of scope are illustrative. cases that follow against action brought an
In Mieher v. Brown decedent The of truck. is- design a truck for negligent the manufacturer of
371 of the manufacturer duty upon of a sue considered was existence to collide. it would be safe with which design the truck to vehicle accepted is foreseeability generally “although The court stated if has been vio determining in applied by jury the test to be must con other elements lated, duty, of the defining scope in 307, N.E.2d 539, 544, Ill. 2d 301 (54 sidered the court.” by in issue not liable because court found manufacturer 435(2) section of Restate any citing beyond scope duty, ment. 656, Marnul 54, 250 N.E.2d
Rozny v. 43 Ill. 2d (1969), real estate negligent survey action out of damages arising for of contract with defend who had no brought privity aby plaintiff any previously pertaining requirements abandoned ant. The court mea contract, will henceforth be stating: “[Tjort liability privity rather than the artificial con scope sured of the owed by 656, 54, 62, 250 660. 2d N.E.2d cepts privity.” In Redarowicz v. 171, 324, Ill. 441 N.E.2d Ohlendorf(1982), 92 home, for allegedly the second owner of a sued builder plaintiff, contract, theories of complaint alleged construction. improper tort, the count for implied warranty liability. Although fraud and was held to be sufficient to implied warranty liability breach of an action, for in construc a cause of the count tort allege Marnul, Citing Rozny dismissed. the court properly tion was held in a tort action is on the liability stated that the measure of based However, the of the owed. court declined to “discuss de scope tail the owed to this because a plaintiff” plaintiff solely cannot recover economic losses tort. 1, City First National Bank v. Aurora (1978), 71 Ill. 2d 373 74, City Springfield French v. (1976), 65 Ill. 2d
N.E.2d and Dini Naiditch (1960), 20 Ill. 2d N.E.2d ordinance for the designed that the violation of a statute or state prima negli human life or evidence of property protection facie has a cause of if he was in injured party that an action gence and afforded tended to come within those cases involved duties that were Although statute or ordinance. ordinance, of a created statute or should receive application principles of common law duty arising consideration, for the the same in both instances. principle similar Alarm Fargo In Cross v. Wells Services men in the had beaten unknown He building housing project. brought damages in a suit lobby the owner of the negligence against project based on *8 372
Wells Fargo, guard who furnished for services certain hours of the day pursuant to a contract owner. The court held that since 15 beating occurred minutes after the time limitation for services contract, provided in the should complaint be dismissed as to stated, Wells Fargo. Although expressly so it is obvious plaintiff’s injuries negligence found in this action to be outside the scope of the created duty by contract. v. Mathews
In (1982), 109 Ill. 441 App. 3d N.E.2d Gustafson 388, the plaintiff killed, was a of a patron widow tavern who was children, four along with after he away drove from tavern in a drunken condition. Plaintiff’s action damages negligence. was for The court held “the created an duty by employee’s assisting incapacitated into his car patron does not include the pa tron’s later acts off the premises.” 884, 888, 109 Ill. App. 391.
Although, seen, as we have just some Illinois courts that have the scope duty considered have in terms of spoken expressly owed,” “scope of the many courts have considered the issue cases, have not done so. The c courts some comment paraphrase of section above, the Restatement of Torts forth set the problem considered or protection of a causation, in terms of whether the determining defendant’s con- “foreseeable,” duct was or the cause” of the in- “proximate plaintiff’s the defendant “furnished a condition” merely which the made plaintiff’s injury possible through the intervening of a third negligence phrases Two that courts party. approaching in terms of problem use are foreseeability commonly foresee- “simply able” and foreseeable.” distinction “reasonably Any meaning be- tween phrases Yet, these two is unexplainable. courts use the two re- peatedly determine whether defendant’s conduct falls within the protection required owed the If plaintiff. foreseeable,” the harm to plaintiff “reasonably defendant subject liability, and a causal provided relationship established, foreseeable,” are if plaintiff the harm to was “simply no liability conduct, will attach to the defendant’s notwithstanding fact that the defendant was under a on the occa- sion in for the question. foregoing analysis easily Illustrations are found. Merlo v. Public Service Co.
plaintiff’s decedents were killed an electrical received when charge boom of crane came in contact with uninsulated overhead power lines of power defendant The court found that the company. expressly power owed company to see that its wires were properly placed and insulated with reference to persons places where they have a legal right be, and the court also found that dece- *9 dents were rightfully lawfully located at the time of the accident. Nevertheless, the court held as a matter of law that the acts of defendant in power lines, company using uninsulated and in permit- ting those lines to sag, were not the proximate cause of the deaths because defendant’s conduct only created condition which made the accident possible through the intervening negligence of a third party. The court thus utilized a “no proximate cause” for its basis decision when there was no simply question at all that defendant’s lines power were a direct and cause of undisputed the deaths. Since defendant present, it is obvious that the court used “no proxi- mate cause” to express that, its decision law, as a matter of deaths of the workmen were outside the scope or The court’s duty. decision was doubtless the consequence of the highly unusual and unexpected, that it to say, “highly extraordi- nary,” nature accident.
Similarly, Neering v. Illinois Central R.R. Co. 383 Ill. 366, sued defendant railroad for injuries re ceived in an assault in defendant’s station while she was awaiting the arrival of a suburban train. The court expressly found the defendant to be under safeguard plaintiff. Defendant argued assault was the intervening act of another and therefore its negli gence was not proximate cause of plaintiff’s injury. The court de cided the defendant on this issue with a discussion of what constitutes the furnishing condition and what constitutes proxi mate cause has quoted many subsequent Illinois cases:
“It cannot be denied that if defendant only furnishes a condition and that condition causes an injury subsequent independent act of a third person, crea- tion of the condition is not the proximate cause of an injury. However, the rule is that the subsequent act, in independent or- der to connection, break the causal one, must be the interven- tion of which was not probable or foreseeable the first wrongdoer. What constitutes cause has been defined decisions, numerous and there no practically difference of opinion as to what the rule is. The must injury be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought foreseen as to occur likely as a result of the negligence, al- though it is not essential person charged negli- which resulted precise injury foreseen the gence should have Oswald, Co. v. 338 Ill. (Illinois from act. Central Railroad his Chicago, Hartnett v. Boston Store 247]; N.E. [170 837, L.R.A.1915C, intervening An effi 460].) Ill. [106 N.E. force which breaks the independent cient cause is a new and and the original wrong injury connection causal between of the injury. the direct and immediate cause and itself becomes Oswald, 270; 338 Ill. Pullman Central Railroad Co. (Illinois Laack, 285, 18 L.R.A. 143 Ill. N.E. Palace Car Co. v. [32 concurrent interven 215].) independent intervention if the intervention causal connection ing forces will break (Wintersteen or foreseeable. probable of such forces was itself N.E. Woodenward Co. Cooperage v. National & [197 Chicago & Northwestern 578]; Preserve Works Sycamore 740, 111 A.L.R. 1133].) Co. 366 Railroad [7 ordinarily ques is the What a consideration by jury to be determined tion fact Rail Phillabaum v. Lake Erie & Western all the evidence. *10 131, added.) N.E. (Emphasis road 315 Ill. 806].” [145 497, 366, 380-81, 50 N.E.2d 503-04. the court’s deci- express was used to both language obviously
This of the defend- or owed range protection sion that the scope and its injury opinion to plaintiff’s ant could extend cover (the cause) relation proximate there was causal of whether question plaintiff’s injury jury ques- and was negligence between defendant’s tion. 74, 74, an (1954), 2 Ill. 2d 117 N.E.2d v. YellowCab Co. Ney involving scope range cited case for issues
other frequently on the issue is and needlessly the court’s decision duty, proximate and cause. foreseeability in terms confusingly couched of fact for a questions referred to Those same terms are likewise in ignition with its There, parked key a thief stole a taxi cab jury. damage hit car and caused and, flight, place while regulating sued. A of a statute provision which the cab was company motor unat who leave vehicles required persons traffic on highways Thus, im was key. and remove ignition tended lock lengthy of the court in a review of is statute. The concern posed by of the duty, sues and was precedents “This stated, expressly so framed. though, as [violation in itself creates no negligence] evidence prima the statute as facie connection with must have a direct and injury The liability. (2 exist.” Ill. will be held to liability of the statute before the violation re must be words, 74, 78.) In other 117 N.E.2d The court the statute. duty imposed of the ceived within could include the statute duty imposed found that the of the of policy a consideration resorting plaintiff’s damages by properly of ve the number increase attending great population, matters stated: “We It then injuries. hicles the increases of traffic-related or not this as to whether question are here with the only concerned of reason force is without or within intervening [the thief] 74, 79.) 74, 82, 117 N.E.2d (2 Ill. 2d probability.” able anticipation and con Neering from The of the above part quotation court used by stating: cluded with to the issue respect reasoning and no authority impelling find no persuasive “[W]e law, hold, that no actionable for this court to as a matter of can exist. are care, and Questions due negligence, 2 Ill. 2d to decide.” of fact for the ordinarily questions 83-84, 117 N.E.2d 80. 372, 308 N.E.2d
The Brennan 56 Ill. 2d case Cunis v. unusual, leg in which plaintiff’s involved freakish accident ap he thrown a stake or in a when was impaled upon pipe parkway he a passenger feet from the automobile in which was proximately 30 another automobile. and which had been involved a collision with that owned against municipality case involved a suit maintained the The court discussed parkway. in Mieher v. Leon Green as used excerpt
recited the Professor addition, in determining Brown. court then “In stated: not have been there the occurrence involved must legal duty, was a contends; foreseeable, it must have been rea plaintiff as the simply 372, 375-76, (56 sonably foreseeable.” of Torts 435(2) The court section quoted Restatement not give the remote of the occurrence did possibility and held “that pro Village rise to a on the legal part guard against his ‘No man can injury. expected vide all, *11 at or harm which to be reasonably anticipated from events are risk, would although recognizable, are so to occur that the unlikely of Torts Handbook of the Law disregarded.’ (Prosser, be commonly 377-78, Ill. 2d 308 N.E.2d (4th 146.)” (56 ed. sec. at 1971), there is no ques The dissent in the case stated that Cunis care to ordinary tion to exercise duty that a owes municipality streets, safe for use who by persons its sidewalks and keep parkways further are care. The dissent ordinary themselves in the exercise and fore- questions duty confused the majority stated that the had village the defendant dissent that whether argued The seeability. remain in pipe care in ordinary permitting failed to exercise it fact, of whether question as was question was a parkway injury. might that failure to do so foreseeable” “reasonably was major- that the the Cunis case reading from readily apparent that that village duty upon part did indeed find a ity that the It is also apparent the dissent. expressed by was as of plaintiff’s that the unusual circumstances highly court found and, ac- or cast beyond matter of was not liable as a village the court held cordingly, line of demarcation between law. Had the court drawn a that scope, with regard its determination and shown duty, for there would have little to write about have had the dissent would of law dealing question that the court question been no of fact. and not one 380, 356 N.E.2d 64 Ill. 2d Marathon Oil Co.
In Davis v. explosion gasoline as a result injured had been overflowed gasoline These occurred when fire at a service station. light ignited by pilot apparently and was during filling operation virtue of statute found a duty present The court from a heater. But gasoline. and sale of storage, transportation regulated which that a no question there would the statute even without law principles. under common imposed would also have been the plaintiff’s injury to whether in the case seemed principal issue of defendant’s was received within the gaso deliveries of receiving, making, others while protect that, as a mat argued when defendant was presented line. The issue injury. not the cause of law, negligence ter of that is Neering cause” discourse the “proximate court quoted to state: and went on set forth above negligent a defendant’s cases which has cited
“Defendant proxi not to have matter of law as a conduct was determined emphasize, We resulting injuries. caused the mately [Citations.] facts. Defendant must turn on its own however, that each case this intervening event if the for its remains liable [in ignite served to inside the station which light the pilot Moreover, defend escape liability, foreseeable. gasoline] was event was unfore intervening ant must demonstrate conclude. Proximate This we cannot matter of law. seeable as a Ill. 2d (64 to decide.” for the cause is ordinarily 93,100.) deciding obviously cause was of proximate The court its discussion
377 aas matter law that were received within the of plaintiff’s injuries scope of of recognizing neg- defendant’s and ligence and no certainly causal relation There was jury questions. question that cause of plaintiff’s injury. defendant’s conduct was a The cause” issue “proximate concern can be related to the of only scope of duty. Transit,
In 126, v. New 2d Felty (1978), Berlin 71 Ill. 374 Inc. N.E.2d 203, truck a plaintiff riding large was a circuit atop hauling breaker. He was to the and a line ground injured by knocked that General Telephone had across Company strung the street. Merlo lines, which had also power involved low was not fol hanging lowed. The court stressed its remark in Davis v. Marathon Oil Co. that each must case turn its that in own facts and noted Merlo the wires were over suspended ordinarily parkway untraveled Felty whereas in was suspended wire over a street. The public court used a quotation from Merlo: “ can a law [proximate be of when the only ‘[I]t cause]
facts are not only undisputed are also such that there but can be no difference in the men as to the judgment reasonable ” ***’ 130, inferences to 126, be drawn from them. 2d (71 Ill. 204.) Then, in the first quotation sentence court “In following said: subsequent cases this court has the question stated that repeatedly proximate a question (71 cause for the ordinarily jury.” N.E.2d The court the jury might concluded that decide that a placed if cable were negligently below minimum height over a roadway, it was that would run foreseeable someone Thus, into it. found concern duty present, its real whether the would to plaintiff’s extend unusual in jury. held as matter of law that it so and left it would extend to determine jury causation. v. City Chicago Greene plaintiff injured standing while at the of his rear stalled
car, hit which was by another had come to automobile. Plaintiff’s car street stop lights placed beneath maintained but at city, the time it lights of the accident the and was working “pitch were not dark.” city The court found that the was under at the readily time of the then accident. Defendant claimed the absence of arti ficial was not the lighting injury. court cited Cunis Brennan and Illinois Neering Central R.R. Co. a as basis for its finding question. cause is a As in cases, numerous other the court had as a actually decided matter of within the had been received plaintiff’s injury law negli- that questions city’s duty defendant jury. were for the gence and causation added court could be
A from the appellate number cases large the opinion above, length considerations to those discussed However, appellate there are three further discussion. prevent any at instructive. to the case bar court cases similar sufficiently that Metro did to determine relatively easy at In the case bar a posi- such dumpster when it placed have a *13 of on- vision it, plaintiff’s interfered with allegedly, tion that at least in Re- explained duty the street. That traffic as she crossed coming (1965): at 268 of Torts sec. (Second) statement Highway on Adjacent to Travelers Dangerous “Conditions thereon to remain or permits A of land who creates possessor *** that he existing highway so near an artificial condition risk an unreasonable or realize that involves realizes should such condition contact with into accidentally brought to others sub- highway, care upon with traveling while reasonable persons to thereby caused physical harm ject liability to who or
(a) traveling highway, are of tra- in the course ordinary from it (b) deviate foreseeably vel.” to place in this case was to the
Thus, plaintiff Metro duty owed vi- unreasonably so as not to interfere the dumpster However, the duty the street. traffic as she crossed oncoming sion of it also determined the court until to rest by could not be put the facts al- under plaintiff to the extended duty imposed that negli- in a found to exist ever duty No leged complaint. plaintiffs’ to pro- It applied unlimited cannot be in its application. case is gence Restatement (See under and all circumstances. any tect a plaintiff of the part as a (1965).) Accordingly, 435(2) of Torts sec. (Second) determine, not only show, the court must issue, must a plaintiff also plaintiff to the protection owed a that a defendant of that range or within that plaintiff of the case. the facts under re- just cases court appellate the three in the instant
As Restatement, quoted 368 of rely on section ferred to expressly illustrate and serve to involved above, as expressive duty. regarding issue N.E.2d 2d 150 App. Ill. 17 In Kubala Dudlow that defendant alleged complaint a the trial court had discussed abutting of concrete posts landowners erected and maintained row point highway and in at where highway close to a proximity danger turn posts posed made and that therefore sharp As in the persons injury plaintiff. and caused using highway consideration, case under landowners filed motion to the defendant nothing dismiss in actions more they which contended that their did possible. than furnish a condition which the injury made court this contending said that contention was “tantamount the complaint appellees shows its face that the acts of the were not the Ill. plaintiff.” (17 App. cause of the 2d 463, 469, 643, 646.) The court concluded on the point by stating: examined this case carefully complaint “We brings are opinion complaint this cause action general within the rule above application noted 368 of [section 463, 469, the Restatement (17 App. Torts].” N.E.2d can talking be seen was not about cause as a issue at factual all. It decided as a matter of law that the defendant did landowners owe a under the plaintiff facts alleged and that the was within the protection of that The case duty. was remanded for a trial at which a jury would determine negligent whether defendants were their in fact to cause contributed plaintiff’s injury. Township (1981), Vernon App. Hoffman an action plaintiff brought against Commonwealth Edison *14 Company (Edison) and for the of others death intestate in a one-car in accident which car the decedent’s left the highway and struck pole a of that 12 feet utility Edison was located to 16 from the road. court granted The trial to Edison on the summary judgment exhibits, finding and pleadings “the accident was not reasonably on the part foreseeable of Edison and it therefore no duty.” breached 721, 722, 519, Ill. (97 3d 423 App. 520.) N.E.2d court appellate properly decision related that the determination of of question the is a of duty question law for court. of a legal “While existence in ordinarily considered terms of the duty is not foreseeability, alone,” said, foreseeability bottomed on the court factors to “Other consideration, taken into besides the foreseeability possible of harm, condition, are from a the likelihood of the existence of against it, of magnitude guarding conse [of burden] of (97 burden the defendant. Ill. quences placing [Citation.]” 724, 519, 423 App. 521.) 3d N.E.2d that Edi noted expressed son’s Restatement Torts sec. 368, and found that sufficient facts were the exhibits presented
380 as of law ex-
enable the court to determine a matter 368) isted. The court the facts to the law found applied (sec. then it that no was not duty existed because here that
“reasonably foreseeable Edison under the facts as he a normal in decedent would deviate from the road did as could, cident travel. is foreseeable that driver any While reasons, surface, it any paved number of leave the highway Ill. must be to create reasonably duty.” App. foreseeable 721, 726, 3d 423 N.E.2d 523. “ v. cited Curds Brennan The court for the statement ‘[I]n determining legal duty, whether there was occurrence involved ***; it must simply must not have been foreseeable reason ” ***’ 721, 724, Ill. (97 foreseeable. 3d ably App. existed it was not 521.) The court concluded no because particular this of acci “reasonably type foreseeable” Edison Thus, occur. the court made the determination dent would “reasonably basis of a distinction foreseeable” and “simply between foreseeable.” in its ex- opinion,
It is somewhat ironic that the last paragraph dicta, set pressed fully explain the court forth reasons that to be proper reasoning process true basis of determination and the in well as determining followed existence as duty: must also be an legal duty “The of whether a exists favoring alyzed public policy placement utility view of practice and the State poles along highway right-of-ways, poles Electric are regulation approval placement. such roads maintained most this along erected and streets of these public state for location necessary Generally, benefit. to a or on road poles public right-of-ways adjacent medians unless the utility liability upon company does impose in the ordinary a hazard for vehicular travel placement creates Shapiro Toyota Motor Co. (1978), 38 (See course travel. Montgom Simpson City 868; App. N.C. 248 S.E.2d 498.) of the undesir ery (1968), 282 Ala. 211 So. Aware a duty upon that would flow consequences imposing able so.” (97 of this we decline to do Edison under the facts 721, 727, App. portion 12 to feet from short, poles utility placed traveled *15 do burden impose of law unreasonable as matter highway highway. travelers’ use of a upon it before later the case had
The same court that decided Hoffman more na compelling another case of similar nature but with facts of a ture, 335, 431 Boylan (1982), 103 Ill. App. v. Martindale 62. In the in an who was Boylan plaintiff was a automobile passenger injured when that automobile another at an intersection collided with and six secondary then had a with a situated from impact utility pole to 12 the the Plaintiff’s suit highway. inches from traveled portion was brought the driver of other and against against the automobile the for its breach of to City duty in remove trees bushes failing near intersection, driv which obstructed view approaching ers, for in a permitting utility pole negligently placement as dangerous near the also named position highway. complaint (Edison) defendants Edison and Bell Company the Commonwealth (Bell), which were in the Telephone Company charged placement pole. granted and maintenance of The trial court utility to motions dismiss the counts complaint City, directed Edison and for Bell failure to state a cause of action. appellate placed reliance predictably heavy decision in Hoffman very ran obviously great difficulty into deal of in dealing with the fact that the utility pole here involved to 12 only six inches from the portion traveled highway, whereas the Hoff man case it had been to12 16 feet traveled portion Hoffman, As in highway. question alleged whether the facts showed defendants to be under a to the and whether the plaintiff’s injury was within the protection of that duty. Again, the court advanced dual reasons for its decision to affirm the all dismissal of counts city, Edison and Bell. The court quoted section 368 of the Restatement of Torts as expressive case, however, owed. In this court, as decision, first-stated basis of its quoted “particularly relevant” their dicta from regarding the fact that Hoffman legal whether a duty exists must be analyzed public view of the pol icy favoring placement utility poles along highways. Such state ment would have been sufficient reason hold that the Edison City, and Bell owed no plaintiff, would have been unneces sary to consider whether plaintiff’s injuries were within the However, afforded a duty. the court went on with an analysis and the thereof based on facts the case.
“It is common knowledge vehicles collide in roadways on occasion leave the and strike a roadway pole or tree utility However, adjacent roadway. third persons to be imposed those who erect and maintain such utility *16 of there such deviation
poles, anticipation must be reasonable App. (103 from the as a normal incident of travel.” roadway 70-1.) complaint alleged utility lining that the that the Despite poles the fact had here) the involved been contin- (the pole North Avenue locale of automobiles, that to with the court found ually subjected collisions such a be- duty” not sufficient facts “create complaint allege did had been particular pole cause it allege did did not correlate the by attempt struck automobiles and previously led to other with the condi- striking utility poles conditions that of the striking pole. tions that led to of this particular that difficulty The case of Boylan good example furnishes fore- of are discussed terms of duty scope duty can arise when and made the court found no seeability application of harm. The factual to a from a al- foreseeability utility pole placed such in harm motorist of It leads to a upon highway. most the traveled strained portion harm, and result. there was foreseeable as certainly tortured Almost stopped The court should have its almost would have found. any jury decisions, policy arises from reasoning duty with statement utility poles of that erect and maintain and as a matter entities policy, regard to travelers come under no adjacent highways of injured poles. such upon highway placement who are reason, then, or scope There have no to consider the would of of range duty. any
It said courts could well reached a very should be that other have Boylan the basis of the same upon pol- conclusion in the case contrary Kubala v. Dudlow. icy matters discussed there. Cf. for determination of under issues presents case consideration Kubala, Boylan. that are similar to those and Hoffman
Those are defendant was under a and whether issues was incurred within or of plaintiff’s injury scope un- concluded not that defendant was majority only of duty. within the plaintiff’s injury der a also that was incurred duty but However, scope duty. by analyzing did so Such an is foreseeability. approach in terms cause and it does not focus on the true basis misleading because unreliable or protections. and its determination of and the majority approached the trial court Although opinion case the basis of upon foreseeability, proximate issues an occasion for ac- furnishing provided and the a condition third independent, intervening cident through underlying unexpressed I their party, nevertheless believe process something following. and decision went like reasoning There streets from the full against blocking is vision policy streets in manner. The reason is that pedestrians who use a normal are, best, streets and truck danger at because of automobile places traffic, and are at because pedestrians disadvantage a continual speed size and of the vehicles on the street. not an un- generally individuals, reasonable burden or other entities companies placing avoid obstacles near a street so as to the vi- impede block pedestrians. sion of These matters are in section policy expressed Torts, the Restatement there no accordingly question that the defendant here under a to this as plaintiff imposed by law. received, is,
The next was the compulsory question alleged disclosed the facts in the complaint, within *17 of the If range protection duty? dumpster placed of the had been on on town, street the other of on another away side or street block accident, from or on the street block plaintiff’s same but a from away accident, plaintiff’s the accident would not have plainly been within it, the of the scope would be a ridiculous notion to duty. suggest and no one ever do so. If dumpster would had been on the same street but 300 feet distant from of plaintiff’s accident, the scene there still would have been little question accident was not within scope range protection feet, or of At of the a distance of duty. 300 however, the factors enter the process into for determining of the scope duty begin might to surface. It cross the mind of an able aggressive attorney dumpster something could have had with to do accident. plaintiff’s attorney That would add the defendant as a party press his little although perhaps expectation with of Little required success. would be for a defendant to evade responsi- accident, for the for it bility would be obvious at a distance 300 feet the dumpster all likelihood could not have contributed of the accident. The would court consider matter with care probably law, some decide matter that, as a the defendant i.e., was not liable for plaintiff’s plaintiff’s was injury, injury received outside the or scope range legal protection At feet, defendant. distances between feet and 50 different judges might reach different as to in- plaintiff’s conclusions was received But if the jury scope dump- owed. within less, feet, accident, ster or from of plaintiff’s were the scene plain- join tiff’s would Metro as one at attorney party-defendant as a least partially case responsible injury press vigor his with defense, just and insistence. In the defendant would “It’s a condi- say, to the matter and tion.” would careful consideration give The court in- that, law, plaintiffs injury conclude as a matter of probably range protection duty imposed curred within the or to trial and sufficient evi- goes defendant. As the case upon law motions, the Pedrick get beyond both sides to produced by dence is by ruling its role in the case proper the court will have performed will then be called to it. The presented the matters law three factual issues: by deciding role in the case perform its i.e., should defendant have fore- negligent, defendant (1) Was site the plain- at the chosen dumpster seen that by placing occasion; injured tiff on this might plain- cause of (2) negligence defendant’s Was at this junc- used properly tiff’s “Proximate cause” injury. Pat- (see causal connection Illinois ture to denote causation or Civil, (1) and if (2d 1971)); No. 15.01 ed. (IPI), tern Instructions are answered in the affirmative: (2) nature, extent and dollar and the (3) plaintiff injured, Was thereof. value of a presence the determination
In most cases injuries previ- most fall within easily because relatively comes has found to ex- the law where areas of ously recognized ready guide. principal But ist, serve as precedents and available of its or comes with the difficulty duty obviously cases. Issues readily apparent That is range protection. of with disposed could be regarding if a would in terms understanding express greater ease and within the scope or was not inflicted state that an merely to a defendant particular owed by viewing the court That issue is resolved particular plaintiff. *18 law whether as a matter of determining after the fact and incident and unusual extraordinary was so received against it. guard required should not have been that the defendant policy. It is another